On March 6, the United States Court of Appeals for the Sixth Circuit became the first federal appellate court to reject the National Labor Relations Board’s 2023 Cemex standard, which was adopted during the Biden administration.

Under the Cemex framework, the National Labor Relations Board (NLRB) could order an employer to recognize and bargain with a union if the employer committed unfair labor practices during an organizing campaign, even if the union ultimately lost the election. In Brown‑Forman Corp. v. NLRB, 2026 WL 632679 (6th Cir. 2026), the Sixth Circuit held that the Board overstepped its authority by effectively creating a sweeping new regulatory framework through a single adjudicated case under Cemex rather than through formal rulemaking.

NLRB’s Policymaking Authority

In the National Labor Relations Act, Congress assigned the NLRB primary responsibility for developing and applying national labor policy. The Board typically does so through two mechanisms:

• Rulemaking: The NLRB issues formal regulations that establish generally applicable policies or standards. Rulemaking typically involves public notice and an opportunity for comment.
• Adjudication: The Board decides individual cases and, through those decisions, interprets and applies labor law to specific disputes. Over time, these decisions can shape broader policy.

The 2023 Cemex Standard

Before Cemex, employers generally had the option to decline voluntary union recognition and instead insist on a...

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